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If you’ve been to a minor league baseball game recently you’ve probably seen some outrageous promotional scheme. Everyone is looking for the next Mike Veeck-esque idea to try to bring people into the ballpark. Whether it’s giving away a house or a free lifetime supply of burritos, every team wants to have that next creative idea.

But what happens if something goes wrong? Or if someone gets hurt? There are major liability issues involved in promotions, or even stadium construction in general that are created to help enhance the fan experience. Some Major League teams have built new stadiums with all sorts of original seating ideas, like the pool at Chase Field in Arizona. Numerous minor league parks have put in picnic and restaurant areas that fans can use for everything from company functions to birthday parties. I decided to look at a current case that took place at an Albuquerque Isotopes game that could have an effect on future fan injuries and the duty of care that teams owe to fans.

The case begins at Isotopes park at batting practice, as four-year old Emilio Crespin is seated with his parents in a picnic are located in fair territory down the left field line, behind the bullpen. Crespin was struck in the head with a ball off the bat of Dave Matranga of the New Orleans Zephys, fracturing young Crespin’s skull. The family was there as part of a little league party, and had just sat down to eat their food when the incident occurred. Crespin’s family filed a lawsuit against the Isotopes, the City of Albuquerque (owners of the stadium), Matranga and the Houston Astros (the major league affiliate of the Zephyrs).

The New Mexico Supreme Court has decided not to apply the “baseball rule” to the case, a rule that helps insulate teams who provide some protection for spectators, such as netting behind home plate, from lawsuits involving injuries to spectators. The trial court granted summary judgment in favor of all defendants. The plaintiff then appealed to the New Mexico Supreme Court, which affirmed summary judgment in favor of Matranga and the Houston Astros, but reversed the judgment originally in favor of Isotopes and the City of Albuquerque.

The picnic are that the plaintiff was sitting in was in fair territory, but was a good distance from the playing field itself. No protective netting is provided for the area, nor in any other area in the outfield stands. The only other protection is behind home plate where there is netting to protect the fans from balls fouled straight back. The reason for this is that fans sitting behind home plate have far less time to react to a foul ball than fans who are sitting more than 300 feet away in fair territory. Crespin claimed that the team and city breached their duty of care by failing to adequately protect spectators from fly balls, failing to warn, and failing to keep the premises safe for visitors. The family claimed that the team had arranged the tables in a way that made it so patrons could not see the field, and there was not protective netting or screen to protect spectators in the area.

The New Mexico Supreme Court reversed the decision of the trial court, saying that there is no public policy to protect baseball with the “baseball rule.” Also, assumption of risk when attending a game should be used as part of comparative negligence. In the past, when negligence was an all-or-nothing case, there was more of a reason to protect baseball teams from lawsuits involving spectator injury, but that is not true today. The result of the ruling will be a full trial on the merits involving the Isotopes and the City of Albuquerque.

This decision alone could impact a lot of baseball teams, both at the professional and minor league levels. Most fans who get hit by balls feel that there is no legal recourse because they assume the risk once they enter the stadium. However, since comparative negligence has become a more common standard in negligence cases, there could be more legal recourse for fans who do not feel they are adequately protected. Therefore, teams must be more conscience of their managerial decisions. Promotions and creative seating areas can create major liabilities that teams may not even realize. Even if the Isotopes win the case when it goes back to trial, they now know they must be more protective of fans sitting in the picnic area. The so-called normal protections normally provided by teams to fans are no longer enough to avoid litigation involving fan injuries.

The fact is, seating areas such as the picnic area do cause distractions from the field of play. Although fans should be aware that more balls than usual could head for that area during batting practice than a real game, it is still the duty of the team to warn the fans of the dangers, especially with fans as young as four-years old entering the area.

We all know that fans aren’t always paying attention to the game, and that cannot be prevented no matter what measure you take. However, when you invite fans to be distracted from the field by giving them amenities such as a pool or an outdoor restaurant, you must take action to make sure those fans are as safe as possible. The Isotopes situation could be simply fixed by netting that blocks the area. Sometimes, even though it may seem as though fans should be aware and responsible, it is much easier to take the necessary precautions, and avoid messy legal disputes.